R (Child Abduction: Parent's Refusal to Accompany)

Hearing date: 8 October 2024

Approved Judgment

This judgment was handed down remotely at 10.30am on 30 October 2024 by circulation to the parties or their representatives by e-mail and by release to the National Archives.

Introduction

This appeal arises from the refusal of a father's application for the summary return of his three daughters to France under the 1980 Hague Convention on the Civil Aspects of International Child Abduction. By his order of 26 June 2024, Mr David Lock KC (sitting as a deputy High Court judge) dismissed the application in a reserved judgment after a two-day hearing. The father now appeals.

The appeal raises several issues, but at its core it concerns the judge's treatment of the mother's case under Article 13(b), and in particular his approach to her assertion that she would not accompany the children if a return order was made.

Submissions have been made by Ruth Kirby KC and Frankie Shama for the father and Jennifer Perrins and Elle Tait for the mother. Mr Shama and Ms Perrins appeared before the judge. We have also had the benefit of written submissions on matters of principle and practice from Reunite International Child Abduction Centre (‘Reunite’), who were granted permission to intervene and did so through Teertha Gupta KC and Mani Singh Basi, instructed by Brethertons LLP. We are grateful to them all.

I would dismiss the father's appeal for the reasons that follow.

The background

The mother is British, while the father is Algerian by origin but was living and working in France when the parents' relationship began. They married in 2015 in France, where the children were born, the eldest now being 7 and the youngest just 2. The children lived all of their lives in France, visiting the mother's family in England from time to time, until 23 October 2023, when the mother brought them to England.

The judge found that by the time the mother left the parents were having frequent extended arguments and that the mother was deeply unhappy, had resolved to end the marriage and had decided that she needed to leave the father and move to England. The father drove the mother and children to the airport at half-term. They went to stay with the mother's parents. The mother's account was that the father knew they would not be returning, while his was that they were expected back after two weeks, as had happened in the past. The judge found that the father knew that the mother wanted to leave the marriage and go to England but that he closed his eyes and did not engage.

On 1 November 2023, the mother texted the father to say that she had decided to stay in England with the children. Exchanges between the parents then included a message from the father on 5 November in which he said that he would respect the mother's decision but wanted contact. In later messages, he wrote that he was not asking the mother to return and that he could go back and forth to England to see the children.

However, having concluded that this approach was not going to lead to a reconciliation, the father changed his position. On 17 January 2024, he told the mother that he wanted his family back again and on 20 February 2024 he issued his application for summary return.

The judge's decision

The final hearing took place on 17–18 June 2024. The mother accepted that the children had been habitually resident in France until October 2023 and that the removal had been legally wrongful. She advanced three bases on which a return order should be refused: consent, acquiescence and Article 13(b).

The judge heard evidence from both parents on the issue of consent. He did not find them to be wholly reliable witnesses. He considered that the truth lay somewhere between their accounts and that both, perhaps without deliberately trying to mislead, were being selective and seeking to interpret events in a way that supported their case. In the result, he found that the father had not consented to anything other than the children coming to England for a short holiday. The mother has not appealed from that finding.

On acquiescence, the judge found that the father's messages indicated that he was accepting that the mother and the children would not be returning at the end of half-term and, while he may have preferred that to happen, he was not pressing for it. He held that the mother had proved her case that, from about 5 November 2023 to 17 January 2024, the father's state of mind was to acquiesce in her wrongful decision to take the children to live in England, albeit he may have hoped that he could eventually persuade her to agree to return to France with the children. The judge noted that this left him with a discretion to exercise.

The mother's case under Article 13(b) had two elements:

(1) Non-return. In her statement, the mother said that she was not prepared to return to France under any circumstances. She explained in some detail why she had reached that position and she argued that, as she had been the children's main, if not sole, carer it would be intolerable for them to be separated from her.

(2) Father's behaviour. The mother asserted that the father had subjected her to abusive and controlling behaviour in a number of ways. He had very little experience of hands-on parenting, and would be unable to give three distressed girls the care that they would need, individually and collectively. Further, his own emotional needs would take precedence and, based on past behaviour, there would be a risk of him losing his temper with them.

The father replied:

(1) He denied the mother's allegations about his behaviour and parenting capacity. He pointed out that she had agreed to him having the children for a week's holiday in England alone.

(2) The mother's evidence about non-return was disingenuous, but, even if she meant what she said now, it was inconceivable that she would not accompany the children if a return order was made.

The judge offered the father the opportunity to cross-examine the mother on her evidence about not returning, but his counsel, Mr Shama, declined the offer.

The judge directed himself carefully on the approach to Article 13(b). He considered the guidance given in the following cases, among others:

Re E (Children) (Abduction: Custody Appeal)[2011] UKSC 27, [2012] 1 AC 144, [2011] 2 WLR 1326 at [14, 32, 34, 36] (‘ Re E’)

Re K (1980 Hague Convention: Lithuania)[2015] EWCA Civ 720 at [53]

In re A (children) (Abduction: Article 13(b))[2021] EWCA Civ 939, [2021] 4 WLR 99 at [87–88, 92, 95] (‘ Re A’)

In re D (A Child) (Abduction: Rights of Custody)[2006] UKHL 51; [2007] 1 AC 619 at [52]

C v C (Minor: Abduction: Rights of Custody)[1989] 1 WLR 654, at p.661D/E (‘ C v C’)

S v B (Abduction: Human Rights)[2005] EWHC 733 (Fam); [2005] 2 FLR 878, at [49] (‘ S v B’)

In re W (Children)[2018] EWCA Civ 664; [2019] Fam 125 at [57] (‘ Re W’)

Re B (Children)[2022] EWCA Civ 1171 [2022] 3 WLR 1315 at [64] (‘ Re B’)

The judge summarised the position in this way:

“65. Where allegations of domestic abuse are made, I must conduct an “evaluative assessment of the allegations”: see re A at para 92. If, having conducted that assessment, the evidence before the court enables me confidently to discount the possibility that the allegations give rise to an article 13(b) risk, then the defence is not established. However, if I remain satisfied that there is a grave risk, I next have to go on to ask myself whether, on the basis the allegations are true, the children can nonetheless be protected from being exposed to physical or psychological harm or otherwise placed in an intolerable situation as a result of the protective measures that the remaining parent is able to put in place.

66. Applying those principles to the facts of the present case is not entirely straightforward. It seems to me that these cases explore the tension between, on the one hand, not allowing a parent to thwart the policy of the Convention by creating the intolerable situation by the parent's own choices and, on the other hand, recognising that characterising a parent's refusal to return as being a “choice” may be simplifying a far more complex decision which can fall to be taken by a parent who claims to have been a victim of domestic abuse. On the facts of this case, the evidence makes it clear that the Mother's case is that she has made her decision to stay in England for the reasons she has given. Accepting her case at its highest as I am bound to do, it does not appear to me to be appropriate to characterise the Mother's decision as being an entirely free choice or a decision she has made with the purpose of limiting the choices available to the Court. She says that it is a response to the emotional effects on her created by the Father's conduct towards her during the marriage. I make no findings of fact on her motivations but, taking her evidence at its highest as I am bound to do, I have to accept that at least a substantial part of her reasoning underlying her decision to stay in England is connected to her experiences in the marriage and that she...